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The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander (New York: New Press, 2010); 312 pages.

Many Americans deny that their country is home to any serious problem of institutional racism. Segregation was abolished generations ago and slavery has been extinct nearly a century and a half. Those favoring smaller government often see that the race card is used by leftist politicians and agitators to push for more government, and recognize that unfair, politically correct accusations of racism are frequently thrown around without justification, doing great damage to civil discourse. It is sometimes forgotten how much a threat racism itself continues to pose to liberty when backed up by the guns of the state.

In a presidential debate in South Carolina, Ron Paul echoed a theme he has repeated for years, that although much progress has been made in race relations, there remains one area where racism is still a major problem: the criminal-justice system. Juan Williams asked him, “Do you see racial disparities in arrests and convictions as a problem?” Paul responded, “It’s not that it’s my opinion. It’s very clear … blacks and minorities involved with drugs are arrested disproportionately.” This is mostly true with “victimless crimes,” Paul said, although it is also reflected in other areas: “Rich white people don’t get the death penalty very often.”

Libertarians have condemned the Drug War’s racism for decades, looking back at the bigoted origins of the first federal laws against opium and marijuana, examining arrest and conviction rates, and noting the disparity between sentences levied for powder and crack cocaine. Yet it has not always been clear exactly how the racist element has persisted in the modern era, when most Americans are more openly anti-racist than ever. A failure to reconcile this paradox is at the root of both the right-wing attitudes that America’s days of institutional racism are over and the left-wing attitudes that mainstream American society is as hopelessly racist in a conventional sense as ever before, the criminal-justice system merely being a symptom of that disease.

The New Jim Crow: Mass Incarceration in the Age of Colorblindness, by Michele Alexander, makes sense of it all. While I cannot endorse all of her political opinions, her analysis of the criminal-justice system’s racism is indispensable for anyone attempting to understand our times, when we live under the first black president yet there are more blacks in prison than ever.

First it must be understood that the criminal-justice system is “not just another institution infected with racial bias but rather a different beast entirely.” It has become the primary mechanism of subjugating racial minorities in the United States, and the numbers are staggering. A higher percentage of blacks are behind bars in the United States than there were in South Africa at the height of apartheid. “One in three young African American men will serve time in prison if current trends continue, and in some cities more than half of all young adult black men are currently under correctional control — in prison or jail, on probation or parole.”

Racial caste systems in American history

Alexander briefly tells the story of racial oppression in the United States going back to colonial times. The very notion of racial distinctions is tied up with a legacy of persecution: “[The] idea of race emerged as a means of reconciling chattel slavery — as well as the extermination of the American Indians — with the ideals of freedom preached by whites in the new colonies.” Because the Declaration of Independence and Constitution touted such lofty ideals about liberty, a racial mythology was necessary. Racism was as much a product of slavery, which came about for economic and political reasons, as it was a cause of it. The emphasis on race became increasingly important as a means of the powerful elite to divide poor powerless whites against slaves to prevent a class consciousness from emerging among all the disenfranchised against the privileged.

After the Civil War and Abolition, black codes were implemented to keep blacks in their submissive place. “One vagrancy act specifically provided that ‘all free negroes and mulattoes over the age of eighteen’ must have written proof of a job at the beginning of every year. Those found with no lawful employment were deemed vagrants and convicted.” Those who could not pay fines to the very state that imprisoned them were forced back into slavery: “With no means to pay off their ‘debts,’ prisoners were sold as forced laborers to lumber camps, brickyards, railroads, farms, plantations, and dozens of corporations throughout the south.” It is no exaggeration to say that this was the continuation of slavery by other means. A Virginia Supreme Court decision found that a convicted man was “for the time being a slave to the State.”

Again there was a risk, in the late nineteenth century, that poor whites would form a populist movement with disenfranchised blacks, but they ended up co-opted by conservatives and the class realignment never came. It was through government action that the caste system would be solidified and the era of Jim Crow was born:

By the turn of the twentieth century, every state in the South had laws that disenfranchised blacks and discriminated against them in virtually every sphere of life, lending sanction to a racial ostracism that extended to schools, churches, housing, jobs, restrooms, hotels, restaurants, hospitals, orphanages, prisoners, funeral homes, morgues, and cemeteries.

As the twentieth century progressed, the federal government began intervening to overturn state segregation, although that led to a backlash. Tens of thousands of activists were jailed. The KKK was reborn. The Civil Rights Act and federal court cases overturned official racism, but soon enough “the seeds of the new system of control — mass incarceration — were planted during the Civil Rights movement itself, when it became clear that the old caste system was crumbling and a new one would have to take its place.” In the guise of “law and order” and cracking down on crime, there was a new resentment against blacks — largely felt by working- class whites who had suffered far more disruption by Civil Rights measures, such as forced busing, compared to the “affluent white liberals who were pressing the legal claims of blacks and other minorities.” Today, decades later, while segregation and legal discrimination have long since been abolished, “it is not at all obvious that it would be better to be incarcerated for life for a minor drug offense than to live with one’s family, earning an honest wage under the Jim Crow regime — notwithstanding the ever-present threat of the Klan.”

Drug War and criminal-justice system evils

We must recognize that the criminal-justice system, particularly the Drug War, disproportionately hurts poor minorities. But first it may be beneficial to appraise the overall reach of the problem and how it affects us all. “In less than thirty years,” since the modern drug war began, “the U.S. penal population exploded from around 300,000 to more than 2 million, with drug convictions accounting for the majority of the increase.” The incarceration rate in the United States is “six to ten times greater than that of other industrialized nations — a development directly traceable to the drug war.”

The Drug War was not demanded by the people but imposed by politicians, especially Ronald Reagan, who whipped up hysteria:

At the time he declared this new war, less than 2 percent of the American public viewed drugs as the most important issue…. Participation in the drug war required a diversion of resources away from more serious crimes, such as murder, rape, grand theft, and violent assault — all of which were of far greater concern to most communities than illegal drug use.

By 1989, the Drug War had won over the population. A major poll found that “64 percent … now thought that drugs were the most significant problem in the United States.” The 1980s saw a rapid rise in federal Drug War spending and power. “Between 1980 and 1984, FBI antidrug funding increased from $8 million to $95 million. Department of Defense antidrug allocations increased from $33 million in 1981 to $1,042 million in 1991.” Penalties for victimless crimes became increasingly draconian. “Prior to the Drug Reform Act of 1986, the longest sentence Congress had ever imposed for possession of any drug in any amount was one year. A life sentence for a first-time drug offense is unheard of in the rest of the developed world.”

Civil liberties have of course taken a hit. Alexander has a great summary of the many ways searches and seizures and asset forfeiture have expanded the police state to the detriment of liberty. Under Reagan, “state and law enforcement agencies were granted the authority to keep, for their own use, the vast majority of cash and assets they seize when waging the drug war.” Fourth Amendment standards once seen as sacrosanct have been discarded. The rule of law has been destroyed, as innocent people are turned into informants and witnesses and people are intimidated into pleading guilty to avoid ridiculously draconian sentences. Sometimes, guilty suspects share confiscated assets if they rat on others. Meanwhile, the system is heavily tilted against the poor. “Two-thirds of people detained in jails report annual incomes under $12,000 prior to arrest” — they cannot afford private lawyers and the public ones they are assigned will often meet with them for literally a few minutes before striking deals with the prosecution.

Americans are sentenced to life for selling marijuana while being in possession of guns, even if no violence is committed or threats made. One man got ten years for giving a ride to a drug dealer. Property crimes are sometimes disproportionally punished, too: “Fifty years to life was the actual sentence given to Leandro Andrade for stealing videotapes, a sentence upheld by the Supreme Court.”

The police in nearly every city and town have been federalized and militarized. The trend has been especially bad under Democrats Bill Clinton and Barack Obama. “Clinton escalated the drug war beyond what conservatives had imagined possible a decade earlier…. Clinton — more than any other president — created the current racial undercaste.” Funding for “drug task forces had begun to dwindle during George W. Bush’s tenure, but Obama, as a presidential candidate, promised to revive” the program. Obama’s stimulus program “included more than $2 billion in new Byrne funding and an additional $600 million to increase state and local law enforcement across the country.”

Today’s criminal-justice system has also brought back the debtors’ prison. Alexander gives an account of a woman who was detained in a Diversion Center “because she owed a $705 fine” to the court system. “As part of the diversion program, Hurley was permitted to work during the day and return to the center at night…. Room and board at the diversion center was about $600, and her monthly transportation cost $52.” If she had $700 she could have bought her freedom, but she was stuck month after month in this dystopian situation.

Law enforcement as race oppression

The swelling of the prisons and its racial disparities cannot be attributed to differences in violent crime rates, Alexander argues, pointing out, for example, that only 7.9% of federal prisoners are there for violent crimes. And she provides ample evidence that minorities are disproportionately hurt by the system, especially the Drug War. In Georgia, 98.4 percent of those serving life sentences were blacks. Over a three-year period, there were more than 2,000 federal crack-cocaine prosecutions — all but 11 of the accused were black; none were white. In 2000, blacks were “more than six times as likely as whites to be sentenced to prison for identical crimes.” In seven states in 2000, blacks were “80 to 90 percent of all drug offenders sent to prison.” Prison admissions for blacks increased by a factor of 26 from 1983 to 2000.

“[Studies] suggest that white professionals may be the most likely of any group to have engaged in illegal drug activity in their lifetime, yet they are the least likely to be made criminals.” Black youth are far more likely to be severely punished for drug dealing than white youth, even though “[the] National Household Survey on Drug Abuse reported in 2000 that white youth aged 12–17 are more than a third more likely to have sold illegal drugs than African American youth.” Moreover, whites are “actually more likely than people of color to be carrying illegal drugs or contraband in their vehicles,” yet they are much less likely to be pulled over and searched than blacks or Latinos. In many neighborhoods, black youth reflexively stand waiting to be frisked when police drive by, a condition reminiscent of the days “when black men were expected to step off the sidewalk and cast their eyes downward when a white woman passed.”

A few factors explain the racial gap. Police disproportionately search for drug criminals in poor minority neighborhoods. Prosecutors have the most discretion of anyone in the system, and they tend to be lenient to whites and hard on blacks. White suspects are far more successful in plea agreements. Then there is the effect on juries: “[Thirty-one] states and the federal government subscribe to the practice of lifetime felon exclusion from juries. As a result, about 30 percent of black men are automatically banned from jury service for life.” In addition, prosecutors tend to excuse blacks from the jury pool, using shoddy excuses or none at all.

Alexander argues, fairly convincingly, that street criminality has in modern American culture become a major element of “what it means to be black” — at least according to perceptions. The image of a drug offender conjured up by most in society tends to be a black person, even though whites are as likely to violate drug laws — this misconception only reinforces the institutional bigotry. It also explains such disparities in the way illegal drugs are treated compared to drunk driving:

The total of all drug-related deaths due to AIDS, drug overdose, or the violence associated with the illegal drug trade, was estimated at 21,000 annually — less than the number of deaths directly caused by drunk drivers, and a small fraction of the number of alcohol-related deaths that occur every year.

Alexander makes a fairly persuasive case that the whole purpose of the drug war was to wage war on minorities in the guise of race-neutral policy. Ironically, she argues that the attempt to be colorblind makes the problem worse, since we can’t challenge it on a racial basis. But, as she points out, the ways in which the Drug War are not specifically racist apply somewhat to Jim Crow, too:

Although it is common to think of Jim Crow as an explicitly race-based system, in fact a number of the key policies were officially colorblind. As previously noted, poll taxes, literacy tests, and felon disenfranchisement laws were all formally race-neutral practices.

She also urges readers to understand that Drug-War supporters are not racist in a traditional sense — but the effect of the policy is just as racist. “We, as a nation, seem comfortable with 90 percent of the people arrested and convicted of drug offenses in some states being African American, but if the figure were 100 percent, the veil of colorblindedness would be lost.”

Another confusion comes in thinking that the Drug War is not as bad as Jim Crow because it punishes only those who choose to do drugs.

But herein lies the trap. All people make mistakes. All of us are sinners. All of us are criminals. All of us violate the law at some point in our lives. In fact, if the worst thing you have ever done is speed ten miles over the speed limit on the freeway, you have put yourself and others at more risk of harm than someone smoking marijuana in the privacy of his or her living room.

All in all, nothing has devastated the black community more than the Drug War:

Hundreds of thousands of black men are unable to be good fathers for their children, not because of a lack of commitment or desire, but because they are warehoused in prisons, locked in cages. They did not walk out on their families voluntarily; they were taken away in handcuffs, often due to a massive federal program known as the War on Drugs. More African American adults are under correctional control today — in prison or jail, on probation or parole — than were enslaved in 1850.

Solutions and implications

Alexander writes, “If we hope to return to the rate of incarceration of the 1970s — a time when many civil rights activists believed rates of imprisonment were egregiously high — we would need to release approximately four out of five people currently behind bars today.”

While many focus on the election of a black man or affirmative action, issues the author thinks are in many ways distractions from bigger issues, the true racial oppression of our time has largely been ignored, both by whites who don’t tend to see it as nearly on the level that Jim Crow was and by an official Civil Rights movement that puts the criminal-justice system very low on its priority list. Alexander urges all Americans, of all races, to see the criminal-justice system and Drug War as a huge blight on all of society, and the greatest racial injustice of our time.

The author has some left-liberal views I don’t share on government programs — education, health care, and welfare. But they are in many instances incidental to her analysis. This book contains a tremendous amount of insight, important history, and arguments that must be taken seriously. Nothing is a bigger domestic catastrophe in modern American life than the correctional system and Drug War. Repealing the drug laws and slashing the police state as much as she recommends — if not more so — would be the greatest triumph of American liberty in a lifetime, and a blow against racism as significant as the end of Jim Crow, if not the abolition of slavery.

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Anthony Gregory is research fellow at the Independent Institute, a policy adviser to the Future of Freedom Foundation, author of The Power of Habeas Corpus in America (Cambridge University Press, 2013), and a history graduate student at the University of California, Berkeley.

Reading List

Prepared by Richard M. Ebeling

Austrian economics is a distinctive approach to the discipline of economics that analyzes market forces without ever losing sight of the logic of individual human action. Two of the major Austrian economists in the 20th century have been Friedrich A. Hayek, who won the Nobel Prize in Economics, and Ludwig von Mises. Posted below is an Austrian Economics reading list prepared by Richard M. Ebeling, economics professor at Northwood University in Midland and former president of the Foundation for Economic Education and vice president of academic affairs at FFF.